MARISA: Hi, everyone. This is Environmentally Speaking. I am Marisa Desautel an attorney with a few decades of experience.CLARICE: And I’m Clarice. Happy belated Halloween, everyone. Happy true fall. We can get ready for Thanksgiving and some of us can get ready for Christmas now. But I’m coming at you today with your questions, comments, and topics. And today’s topic we have is from Marisa.

MARISA: Yes.

CLARICE: What’s eating you? What’s going on?

MARISA: Well, so you and I decided at the start of this podcast extravaganza that we would pick topics that were timely, things that were coming up during the course of the workweek. And the trend that I’ve discovered following that conversation is there really are topics that come up over and over within a given amount of time. It might be a week or two weeks or ten days. But I don’t know what it is. It’s like the universe compels people.

CLARICE: [inaudible].

MARISA: [inaudible]. So the issue that came up this past week is an issue that comes up fairly often, but it was very aggressive. And the specific topic is something that is governed by the Rhode Island Open Meetings Act. If you’re not familiar with that statute, it is the statute that requires any public entity to conduct itself in a certain way so that members of the public can participate to a certain extent with the public entity through public discourse because that’s part of our democracy that we want the public to be heard and civil liberties protected. In Rhode Island what that means is if you represent a public entity or if you represent a private client that appears before a public entity you’re constantly looking at the state Open Meetings Act to make sure that the public entity is operating appropriately under that statute. Does that make sense?

CLARICE: Yeah. And we’ve touched on this briefly when dealing with – I believe it was in our episode about notice of violation, how there is an open meeting portion of the event. But this act specifically that we’re talking about today governs what that meeting looks like, what rules it has to follow and kind of the parameters surrounding that portion of the process, right?

[0:02:46] MARISA: Yeah. And the Open Meetings Act is aimed at making sure that government is operating appropriately. I think in one of our previous episodes we talked about notices of violation and making sure that anyone that receives it requests an appeal and can be heard on the issues outlined in the notice of violation whereas the Open Meetings Act is meant more to dictate how public entities can meet, how they cannot meet, what they can talk about, how the agendas need to be noticed and certain deadlines and time frames. So the very specific question that came up – I’m not kidding – three times last week had to do with this notion of something called a rolling quorum. Have you ever heard of that?

CLARICE: No. It sounds very Game of Thrones.

MARISA: Doesn’t it?

CLARICE: Yeah. It does not sound modern in the slightest. So what do our – what do our clients have to do? Does everybody have to get ready to fight for their family’s honor, or are we all meeting out in a field?

MARISA: Well, they have to pay their debts if they’re a Lannister and they also have to make sure that – I guess it makes a lot of sense, but it’s one of those areas of law to me I feel like, how does this happen. I don’t know. That’s not a real category of law, but it’s in my head. It’s a category. If you’re a member of a public body, don’t talk about stuff outside of a meeting, right. That make sense to you?

CLARICE: Yeah.

MARISA: Yeah.

CLARICE: Keep Vegas in Vegas.

MARISA: Yeah.

CLARICE: And sometimes your Vegas is just a meeting.

MARISA: Right. Totally. So in this case if you’re a member of a public entity or a member of government and you’re talking about topics that should only be discussed during a regularly scheduled public meeting, then you’re invoking this issue of a rolling quorum. Let me back up for a second here. A quorum is a fancy word that basically means a majority. For purposes of an open meeting, if you’ve got – let’s say for simple math you’ve got five members that are part of a public entity. A simple majority of that five members is three members. In order to have a quorum, you would need to have three members of that five-member body in attendance at a meeting for there to be a majority or a quorum, meaning, that the body can then vote on certain topics and have those votes be binding. You need a simple majority or a quorum to take any action.

[0:05:51] CLARICE: You only need slightly more than half of everybody to come to the meeting.

MARISA: Yeah. Right.

CLARICE: Okay.

MARISA: [inaudible]. So a rolling quorum means that – let’s say you’ve only got two members that are together from this example of the five-member body that we’re talking about. Let’s say you’ve only got two of them together. That’s not a quorum because there’s only two. It’s not slightly more than half. But if those two people then go on to, let’s say, talk to another member of that public entity, then the quorum is developed through those additional conversations because now you’ve got four members talking and that is more than 50 percent of the members of the public body. So you’re taking the quorum and you’re putting it on roller skates.

CLARICE: That was not the ending I was expecting on that one. I was like, okay, so we take the members and then roller skates, yes.

MARISA: They are roller skating into the next discussion with other members of the public entity so that a quorum is developed.

CLARICE: So those two extra members –

MARISA: What’s that?

CLARICE: So those two extra members don’t have to be there?

MARISA: Right.

CLARICE: So if there’s two people in the meeting and they each text an extra member, can it be that informal?

MARISA: Yes.

CLARICE: Can you just shoot your late buddy a text?

MARISA: Yeah. Yes. Text messages are covered by the Open Meetings Act. You’re not supposed to have any discussion outside of a regularly scheduled open meeting about topics that your entity is charged with regulating.

CLARICE: So how can it be rolling if the discussion is happening outside of the space?

MARISA: The discussion should not be happening outside of the meeting, but it happens often enough. Let’s say you and I are members of a public board. You and I can talk about something, but it has to stay between you and I. There can’t be a quorum. But if you go and speak to someone besides me and you say the same things that you and I talked about, then you run the risk of this rolling quorum occurring.

CLARICE: Oh, so a rolling quorum is not a good thing?

MARISA: No. Oh, no. I’m sorry. Did I fail to –

CLARICE: I don’t know. I was thinking, you know, you’ve got like Joe Bag o’ Donuts who’s running late to the meeting and you and I are sitting in a meeting and we just text him to get that majority. But, no. This is bad. We can’t have – no roller skates.

MARISA: No roller skates.

[0:08:44] CLARICE: So what happens when it happens?

MARISA: It’s a violation of the Open Meetings Act.

CLARICE: What are the consequences?

MARISA: The activity can be reported to the attorney general’s office. They will conduct an investigation and make a determination about whether a violation of the Open Meetings Act has occurred. Then there’s the right of appeal to the Superior Court. Plus someone can bring a separate civil action in superior court alleging damages. And if that’s proven then the public entity is responsible for whatever monetary damages the court finds appropriate for the violation.

CLARICE: [inaudible] This has happened enough to name it a rolling quorum. We’ve the three clients ask about it specifically. Is this a frequent problem? Is this something that’s happening all the time, so is this just like a one-off crazy rule that people like to talk about?

MARISA: It’s definitely not a one-off. I think it comes up so much because there are real world situations that board members, counsel members find themselves in and the situations are constantly changing. Like can I go to this political fundraiser. I’m a member of a board and I know that other members of the board are going to be there. Do I have to stay away from this type of fundraiser. I’m just using this as an example. This is not actually a client scenario.

Can I go to this fundraiser, or show I avoid it because I know another member of the counsel that I am sitting on is going to be there. And the answer is, no, you don’t have to avoid it. Just make sure you don’t talk to that other counsel or board member while you’re at the fundraiser about matters over which your board has jurisdiction. Just don’t do it. That‘s what I tell folks. Go to the fundraiser, but don’t talk about stuff that should be only discussed during an open meeting.

CLARICE: Don’t talk work with your work bestie.

MARISA: Yeah. That’s right. Outside of a regular meeting. This is why it comes up so often, I think, because you have social events. You have fundraisers. You have other board and counsel meetings. You have town council meetings, municipal meetings, other types of social events that are also considered networking, you know, business/personal types of events. So, you know, they happen every single day. A board member wants to go get lunch with another board member. They happen every day.

CLARICE: Outside of, you know, pinky promising that people aren’t going to talk about these special meeting topics outside of the meetings, is there anything that people can do to kind of – is it just a don’t do it and that’s enough protecting yourself, or are there things that, you know, these members should be aware of or extra safeguards?

[0:11:53] MARISA: Definitely check with your attorney. I think that’s the best option that you’ve got. You can also reach out to the ethics commission in Rhode Island. For those folks that have questions about ethical considerations, not just board members and counsel members but any member of the public can reach out to the Rhode Island Ethics Commission to ask their advice. They’re the state commission that investigating and makes determinations on ethical considerations, so they’re also super helpful and lovely, lovely knowledgeable people that will take the time to talk to you. So right off the bat, I would say those are your best two resources.

CLARICE: And I think especially the ethics commission is a very underused resource.

MARISA: I agree.

CLARICE: I’m sure they’re busy. I’m not saying that they’re not busy people, but a lot of people don’t think to check in. A lot of people think of an ethics committee as when something has gone wrong instead of – advice on how to conduct… so they are really helpful with that. They are nice to chat with… Anything else about rolling meetings?

MARISA: Rolling quorums, no I think the roller-skating analogy really explained things quite well.

CLARICE: We can hang up the skates now. So, well it turns out that rolling quorums are not a fun roller rink game, they are not Lancaster jousting, it’s a serious problem and …

MARISA: It’s a violation of state law… you want to avoid the rolling quorum.

CLARICE: That work life balance guys. Keep your work at your work and when you’re at the fundraiser, hang out, eat some hors d’oeuvres.